510 F.3d 714 (7th Cir. 2007), 06-1381, United States v. Thomas

Docket Nº:06-1381, 06-1488, 06-1555, 06-1601, 06-1900.
Citation:510 F.3d 714
Party Name:UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Sheila THOMAS, Jesse Lewis, and Kelvin Ellis, Defendants-Appellants, and Charles Powell, Jr., Defendant-Appellant/Cross-Appellee.
Case Date:December 17, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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510 F.3d 714 (7th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant,


Sheila THOMAS, Jesse Lewis, and Kelvin Ellis, Defendants-Appellants,


Charles Powell, Jr., Defendant-Appellant/Cross-Appellee.

Nos. 06-1381, 06-1488, 06-1555, 06-1601, 06-1900.

United States Court of Appeals, Seventh Circuit.

December 17, 2007

Argued February 21, 2007.

Appeals from the United States District Court for the Southern District of Illinois No. 05 CR 30044-G. Patrick Murphy, Judge.

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[Copyrighted Material Omitted]

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Michael C. Carr (argued), James M. Cutchin, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee/Cross-Appellant.

Paul E. Sims (argued), Stokely Group, St. Louis, MO, for Defendants-Appellants.

Before EASTERBROOK, Chief Judge, and FLAUM and SYKES, Circuit Judges.

SYKES, Circuit Judge.

The defendants in this case-four Democratic precinct committeemen in East St. Louis, Illinois-were convicted of election fraud crimes for their participation in a vote-buying conspiracy during the November 2004 election. They argue on appeal that the evidence was insufficient to establish the existence of a single conspiracy, and that the admission of a DVD of a political speech given by a key government witness was reversible error. We reject these arguments and affirm.

The government brings a cross-appeal regarding the district court's refusal to apply the two-level sentencing guidelines enhancement in U.S.S.G. § 3B1.3 for abuse of a position of trust by defendant Charles Powell, the chairman of the Democratic precinct committee in East St. Louis. Powell argued in the district court that the enhancement should not apply because the increased Democratic voter turnout brought about by the vote-buying scheme cannot have abused the trust of the Democratic Party, which would have desired that result. Who's to say, counsel argued at sentencing, "that the Democratic Party got anything less from Mr. Powell than what [it] expected?"

The district court did not fully credit this extraordinary argument but rejected the enhancement anyway, based on a variant of it; that is, the judge thought the government should have produced a Democratic Party official to establish that Powell was acting against the party's interests. This was unnecessary. One who uses a position of trust to commit a crime has necessarily abused that trust; the government need not prove actual harm to the interests of those whose trust has been abused. Stated differently, the enhancement

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presupposes greater punishment is justified based on the exploitation inherent in the use of a position of trust to commit a crime. This is so regardless of the type or degree of harm caused or the identity or even the existence of a victim. Here, Powell's coordination of the vote-buying scheme through his chairmanship of the local Democratic precinct committee significantly facilitated the commission of the crime and therefore was an abuse of a position of trust within the meaning of § 3B1.3 of the sentencing guidelines. Accordingly, we vacate Powell's sentence and remand for application of the enhancement and resentencing.

I. Background

Sheila Thomas, Jesse Lewis, Kelvin Ellis, and Charles Powell were charged with conspiracy to commit election fraud in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c).1 All four defendants were Democratic precinct committeemen in East St. Louis, Illinois. Two also held leadership positions in the precinct committee: Powell was committee chairman and Thomas was committee secretary. According to the superseding indictment, the conspiracy existed for the purpose of "knowingly and willfully pay[ing] and offer[ing] to pay voters for voting in the [ ] November 2, 2004 general election . . . to secure the election of certain candidates for elective office whom the defendants and their co-conspirators favored ...." The indictment alleged that in the course of chairing committee meetings, Powell directed committeemen to submit election-day budgets to the St. Clair County Democratic Committee for funds to pay voters in their precincts to vote for Democratic candidates. The other defendants attended these meetings and participated in the vote-buying activities as directed. In addition to the conspiracy count, Thomas, Lewis, and Ellis were also charged with aiding and abetting election fraud in violation of 18 U.S.C. § 2 and 42 U.S.C. § 1973i(c) for paying and offering to pay voters on election day, November 2, 2004. The case proceeded to a 17-day jury trial on these charges. We summarize the key evidence below.

A. Rudy McIntosh

The bulk of the prosecution's case came from an informant named Rudy McIntosh, who at the time of the November 2004 election was a 12-year veteran of the East St. Louis Police Department and a newly elected Democratic precinct committeeman. He was working with the FBI on an unrelated investigation into certain committeemen; in connection with that investigation, he surreptitiously recorded an October 12, 2004 committee meeting chaired by Powell. During the meeting, the following discussion took place between Powell and the committeemen present:

POWELL: [I] got people in my precinct gonna' run over me to come in there to vote on . . .


POWELL: It's for the presidential election, you can't hold 'em at home, they gonna', knock me down runnin' up there to vote.

RUDY2: (Laughs).

POWELL: I ain't gotta give 'em nothin. Okay. Ain't gotta give 'em nothin. But what you do is there are people who you know expect something, you take care of 'em all the time because you gonna' need 'em all the time.

ELLIS: That's right.

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POWELL: Now that's the strategy behind the business.

ELLIS: Yeah.

POWELL: You take care of 'em all the time because you gonna' need 'em all the time. Look at your voters records.

LEWIS: Right, that's what I do.

POWELL: And that's the purpose of handlin' it the way we do.

UNKNOWN MALE: It sure is.

POWELL: Now, if they expect somethin' and you don't give 'em nothing, they hold it against you for life. The rest of your life they'll hold it against you. (Laughter)

Later in the same meeting, Powell explained to committeemen how to prepare a budget to cover election-day voter payments:

POWELL: Now if you're a hundred and fifty vote getter, add that one hundred and fifty times five dollars. Let me tell you how they [the St. Clair County Democratic Committee] figure it. They figure about five dollars a vote and they know you gonna' pay everybody who come vote. They know you don't spend that amount of money recruiting voters. They already know this but they're willing ta' pay it.

After this meeting, McIntosh spoke briefly about his election-day budget with Ellis, who acknowledged the vote-payment practice and encouraged McIntosh to "ask for the max" in that portion of his budget.

After hearing this recording, the FBI shifted its investigation to focus on the vote-buying activity in the Democratic precinct committee and worked with McIntosh to record additional meetings and conversations. One such conversation took place between McIntosh and Lewis on October 18, 2004:

RUDY: . . . What are we payin' these people to vote? Now they in the other night talkin' about five dollars. I cain't see that.

LEWIS: Usually . . . well, I'm askin' 'em for fifteen hundred dollars . . . fuck that. I uh-, I, I normally . . .

RUDY: (Laughs).

LEWIS: . . . said thousand. Well, hey, I'm askin' for fifteen hundred. Them people don't take five dollars no more.


LEWIS: Uh, you voted how many people last time and, when you ran?

RUDY: I got close to two hundred votes.

LEWIS: Yeah.

RUDY: Right at two hundred.

LEWIS: You should ask, you figure this time you got about two hundred fifty people.

RUDY: Easy.

LEWIS: Yeah. And ask for twelve hundred. Twelve hundred to fifteen hundred, whatever you can make your mouth say.

RUDY: Okay, but I'm sayin' at that poin', so what are we payin' 'em for each vote? That's . . .

LEWIS: You pay 'em what you wanna pay 'em? You pay 'em what, uh, you decide to pay 'em.

RUDY: Okay.

LEWIS: It ain't 'bout that.

RUDY: Okay.

LEWIS: But I'm sayin', you figure five dollars a vote, at two hundred and fifty dollars a vote. That's twelve hundred dollars, twelve hundred fifty dollars.

After the election McIntosh also recorded a conversation with Thomas, who had been present at the earlier committee meetings when the voter-payment plans for the November 2 election were discussed. This conversation took place on November 10, 2004:

RUDY: Did they, 'eh, okay, so them people out there just blatant out voted

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for him or you had to take care of them. You had to pay them?

THOMAS: We paid everybody.


THOMAS: Uh, Charlie [Powell's son] took care of the money part. Everybody schooled me on my little money thing and now on I take care of my own money thing.

In these and other recordings, the defendants referenced paying voters $5 or $10 to vote for Democratic candidates. Beyond the recorded conversations, McIntosh also testified about his own activities on election day and during the weeks preceding the election. During extensive cross-examination, McIntosh repeatedly contradicted himself and was discredited on many subjects. One such subject was his own campaign for township supervisor in the April 2005 local election, which took place shortly after the initial indictment in this case was returned and...

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